Senior advocate and gay rights activist, Saurabh Kirpal came into the limelight following recently with the Supreme Court collegium reiterating his name as a judge of the Delhi High Court. The Centre had objected to Saurabh Kirpal’s appointment as Delhi HC judge suggesting that his “ardent involvement” in gay rights issues could result in possible “bias and prejudice”. His “foreign-national” partner was another reason cited by the government.
If appointed, Kirpal would be the country’s first openly gay judge. But who is Saurabh Kirpal and does he deserve our support?
Kirpal, the Man
Kirpal is the son of Bhupinder Nath Kirpal, who served as the 31st Chief Justice of India in 2002, and Aruna Kirpal. He has two siblings.
For the past 20 years, he has been in a relationship with Nicolas Germain Bachmann, a Swiss human rights activist, who works at the Swiss Federal Department of Foreign Affairs in New Delhi.
Kirpal, the Lawyer
The 50-year-old senior advocate, who has been practicing for over two decades, read the law at Oxford University after studying physics at Delhi University’s St Stephens College. He worked with the United Nations in Geneva briefly before he returned to Delhi.
Kirpal received his training under the guidance of former Attorney General and senior Supreme Court advocate Mukul Rohatgi, working mostly in constitutional, commercial, civil and criminal law.
Over the past 20 years, he has appeared in various matters covering a diverse range of subjects from commercial to constitutional law. Some of the prolific cases he took on include the legal battle between the Ambani brothers and being part of the arguing counsel before the Constitution bench in the Navtej Singh Johor case that led to the reading down of Section 377 of the Indian Penal Code. He has even taken up the cause for freedom of speech when he appeared for Newslaundry in the case filed against it by TV Today Network, which accused the former of allegedly tarnishing its reputation through their programs.
Currently, Kirpal is representing some of the petitioners seeking legal sanctity for same-sex marriage.
Kirpal, the Activist & Author
A man who has been candid about his sexuality, Kirpal has always described himself as an ‘accidental activist’: that his being a lawyer has allowed him the opportunity to bring about change, which is why he is an activist.
He is also the trustee of the Naz Foundation Trust, the NGO that first fought for the decriminalization of homosexuality in India as well as the author and editor of the 2020 book ‘Sex and the Supreme Court,’. The book is an anthology featuring writings by legal luminaries that explores the impact of the law on various aspects of sex, sexuality, and gender.
His latest, ‘Fifteen Judgments: Cases that Shaped India’s Financial Landscape’, published late last year, gives an insight into 15 landmark cases that had an effect on the financial and economic position of the country.
Kirpal and the Supreme Court
In 2017, the Delhi High Court Collegium, then led by acting chief justice Gita Mittal, unanimously recommended Kirpal’s name for appointment in the high court. However, five years after the recommendation, the Union government still needs to give its stamp of approval. In this time frame, Supreme Court deferred its decision on recommending his name thrice — in January 2019, April 2019, and August 2020.
In February 2021, then CJI S A Bobde wrote to Ravi Shankar Prasad, who was then the Union Law Minister, seeking clarification on the intelligence inputs on Kirpal submitted to the Collegium by the government. The government reiterated its objections to the nationality of Kirpal’s partner at the time. The following month, he was designated as a senior advocate unanimously by all 31 judges of the Delhi High Court.
In November 2021, the Collegium headed by then once again approved and recommended his name to the government. On November 25, 2022, the government sought reconsideration of five names, including Kirpal.
The Supreme Court recently revealed, citing the letters from the Research & Analysis Wing (R&AW) and Prasad, dated April 11, 2019, and March 18, 2021, the reasons for the government’s objections. The letter said that while homosexuality had been decriminalized, same-sex marriage did not have legal recognition “either in codified statutory law or uncodified personal law in India”. The letter further said that Kirpal’s “ardent involvement and passionate attachment to the cause of gay rights” could result in bias and prejudice.
The apex court Collegium, headed by Chief Justice of India D Y Chandrachud and also comprising Justices S K Kaul and K M Joseph, has reiterated its November 11, 2021 recommendation for appointing Kirpal as a judge of the Delhi High Court, rejecting the objections raised. In a statement uploaded on the apex court website, Collegium stated that there was “no reason to presuppose that his (Kirpal’s) partner would be inimically disposed to our country, since the country of his origin is a friendly nation”. It also added that the concerns about Kirpal’s sexual orientation were unconstitutional and applauded Kirpal for not being “surreptitious about his orientation”.
The statement also expressed that the proposal, which had been pending for five years needed to be processed expeditiously. It also reiterated its support for Kirpal, saying that he possesses “competence, integrity and intellect” and his appointment would add value to the bench of the Delhi High Court and provide inclusion and diversity.